Scatmag.com

March 2016

TDSAT JUDGEMENTS


This Monthly Column will Review Of Some Of The Major Cases Concerning Cable Networks, MSOs And Broadcasters, Filed At The Disputes Redressal Forum, TDSAT, In Delhi. SCaT Magazine Takes A Look At Selected Cases And Their Outcomes


NO AGREEMENT, NO CASE !!

Having an interconnect Agreement is mandatory, failing which, no case pertaining to recovery of dues can be filed with TDSAT.

In various different petitions for recovery of dues filed by IndusInd Media against Rajesh Kumar Sharma, Udhistar, Sai Cable Network–II, Vinesh Tyagi, and Anita Sehrawat, the Tribunal noted that an interconnect agreement was executed on 22 August’15 but the petitions were for recovery of dues prior to that.

TDSAT noted that from the agreement it did not appear that it covered any period prior to the date of its execution, adding that that it was not at all clear as to how and on what basis the respondent was supplying signals in the absence of any agreement in writing.

Indusind counsel Kanupriya Gupta was given time to find out if there was any agreement prior to the one annexed with the petition.

The matter was listed for 2 March but it was made clear that in case there is no agreement prior to the agreement dated 22 August, 2015, this petition for recovery of the alleged dues prior to that date may not be maintainable.

While adjourning a similar matter in another case, the Tribunal said, “It is made clear that in case no interconnect agreement is found to be in existence between the two sides, that will raise a question regarding the very maintainability of this petition.”

In 3 cases between MSO Indusind & some of its LCOs, the TDSAT has ruled that if an interconnect agreement does not exist between the two parties, then no case was maintainable in Court.

Indusind had filed a case against RS cable, Om Cable and Vipin Sehrawat, asking that the LCOs be directed to return the STBs supplied to them, since they had stopped being LCOs of Indusind.

The respondents in turn stated that they would like Indusind to refund the sum of Rs. 1100/- paid by them to the MSO, comprising of a security deposit of Rs. 500/- as well as an activation fee of Rs. 600/- per STB.

At an earlier date in Nov’15, the TDSAT had directed the return of the STBs. The LCOs had collectively returned 2290 STBs to the MSO.

On the question of the refunds, the MSO had claimed that the Activation fee is not refundable, and the the LCOs had not paid any Security Deposit at all; the sums paid by the LCO were towards an installation charge of Rs. 500/- on which the MSO had also paid a service tax amount for the same. The MSO also provided copies of their accounts for the period to substantiate the same.

Even though the Agreement detailed that the LCOs would collect rent, installation fees & security deposit, the LCOs had no documentation to prove that the amounts paid by them to Indusind Media were towards a Security Deposit.

Hence TDSAT has directed that the parties produce an Agreement or details to prove that Security Deposit was indeed paid, else the same would not be refundable.



CHANNEL PLACEMENT IS AT DISCRETION OF MSO

In a case adjudged by TDSAT last month, they have ruled that in the absence of the Broadcaster informing the MSO of the specific Genre of its channels, at the time of entering into an Interconnect Agreement, the MSO is free to place the channels in whichever package it liked, based on either the genre, or on the language in which the channel is broadcast.

SUN TV has filed a case against Asianet, stating the Asianet had on its own accord changed the placement of its channels causing harm to the Broadcaster.

SUN had filed a petition that Asianet had unilaterally discontinued carriage of 3 of its channels (Surya TV, Surya Music and Kiran TV) and then restored them again, but providing different LCN numbers. For the past years the channels were at LCN numbers 107, 144 & 146; but these had now been changed in January to 648, 664 & 668; thereby causing much harm to SUN TV viewership. According to SUN, in the earlier LCN numbers, the channels were in their correct genre, but in the new numbers, were placed on the basis of their language, in a different package. SUN maintained that it is obligatory as per the agreement, for the channels to be placed as per their genre.

Asianet maintained that it was at liberty to place the channels as it deemed fit, and had, on the basis of the language in which the channel is broadcast, placed the channels accordingly.

The TDSAT however, noted that though the various genres of the 3 channels was filed with TDSAT in the declarations submitted by SUN TV, there was nothing in the Interconnect agreement stating the genres to which these channels belonged. Neither was there any documentation to support that SUN had indeed declared the genres of the channels to Asianet.

Hence, it was directed that the case against Asianet be dismissed…

Whether or not the change in placement has caused any disadvantage or amounts to inferior treatment with respect to c o m p e t i n g channels on a genre basis is a pure question of fact, which can be gone into only after evidences are led by the two sides, the Tribunal said while posting the matter before the Registrar’s court on 17 March. n